Aereo Goes for the Big Win in Legal Battle

In a fight with broadcasters, the Barry Diller-backed company files for summary judgment.

Now that Aereo experienced victories in the form of beating back a preliminary injunction and affirming the ruling at an appeals court, the digital upstart is looking to score the ultimate ruling.

On Tuesday, in a New York federal court, Aereo filed for summary judgment in the case that examines the legality of its service of providing consumers with the ability to access over-the-air TV programming on digital devices.

"Defendant Aereo, Inc. (“Aereo”) is entitled to summary judgment on Plaintiffs’ claims
for direct infringement of their alleged public performance right and Plaintiffs’ claims for direct
and indirect infringement of their asserted reproduction right," says the motion. "The material facts are undisputed and Plaintiffs’ claims are foreclosed by the Second Circuit’s rulings in this case and in Cablevision, and the Supreme Court’s ruling in Sony.

The broadcasters, of course, believe this case is far from over.

In recent weeks, CBS, Fox, ABC and other other broadcasters suing Aereo asked the 2nd Circuit Court of Appeal to rehear their appeal before a full panel of judges.

In the past few months, the two sides have also been engaged in an ugly discovery fight. Aereo has demanded all softs of sensitive TV industry contracts while the broadcasters have made their own requests to pry into Aereo's funding and business plans.

The next big ruling could be U.S. District Judge Alison Nathan's ruling on summary judgment. If she agrees with Aereo that no jury could conclude that Aereo technology does not violate the plaintiffs’ public performance rights, there won't be a trial.

Aereo's summary judgment relies on the 2nd Circuit's 2008 ruling in Cablevision -- holding that that private transmissions of unique, user-requested copies of copyrighted TV programming are nonpublic -- as well as the Supreme Court's 1984 ruling over the Sony Betamax VCR, given a pass because of its "substantial non-infringing uses" and a finding of "fair use."

As Aereo's lawyers say in their conclusion, "Although the technology through which consumers access and use over-the-air broadcast signals has evolved consistently since the invention of television and will continue to evolve, the legal principles that guide the analysis are constant through Sony, Cablevision, and this case."

The TV networks should be responding in court soon.

A Fox spokesperson gave this comment, "While the court declined to issue an injunction in the very early stages of the case, we are confident that the ultimate outcome, whether by motion or trial, will reject Aereo's signal stealing scheme."